XFCS v Minister for Home Affairs

[2020] FCAFC 140

FEDERAL COURT OF AUSTRALIA

XFCS v Minister for Home Affairs [2020] FCAFC 140   

Appeal from:

XFCS v Minister for Home Affairs [2020] FCA 71

File number:

VID 156 of 2020

Judgment of:

MOSHINSKY, SC DERRINGTON AND COLVIN JJ

Date of judgment:

17 August 2020

Catchwords:

MIGRATION – appeal from decision of the Federal Court of Australia dismissing judicial review application – where Administrative Appeals Tribunal refused to revoke mandatory cancellation of visa by Minister’s delegate under section 501CA(4) Migration Act 1958 (Cth) – where applicant did not pass character test due to having a “substantial criminal record” under section 501(6)(a) Migration Act 1958 (Cth) – whether primary judge erred in not finding that Tribunal failed to exercise jurisdiction by failing to consider applicant’s submissions provided by email – whether primary judge erred in not finding that Tribunal’s failure to consider submissions was material to Tribunal’s decision – no error in primary judge’s reasons.

Legislation:

Migration Act 1958 (Cth) ss 501(3A)(a)(i)-(ii), 501(6)(a), 501(7)(c), 501CA(4)

Direction No 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

Cases cited:

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164

PQSM v Minister for Home Affairs [2020] FCAFC 125

Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365

XFCS v Minister for Home Affairs [2020] FCA 71

Division:

General Division

Registry:

Victoria

National Practice Area:

Administrative and Constitutional Law and Human Rights

Number of paragraphs:

51

Date of hearing:

6 August 2020

Counsel for the Appellant:

Mr Angel Aleksov

Solicitor for the Appellant:

Lawson Bayly

Counsel for the First Respondent:

Ms Catherine Symons

Solicitor for the First Respondent:

Australian Government Solicitor

ORDERS

VID 156 of 2020

BETWEEN:

XFCS

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	MOSHINSKY, SC DERRINGTON AND COLVIN JJ
DATE OF ORDER:	17 AUGUST 2020

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellant is a 31 year old citizen of Croatia, who has lived in Australia since 26 February 2003, a month before turning 14 years of age.

2. On 15 March 2018, a delegate of the Minister for Home Affairs (Minister) cancelled the appellant’s visa as required by s 501(3A) of the Migration Act 1958 (Cth) (Act). It is not in dispute that the appellant did not pass the character test in s 501(3A)(a)(i) of the Act, because of the operation of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentenced to a term of imprisonment of 12 months or more).

3. On 27 November 2018, a delegate of the Minister made a decision, pursuant to sub-s 501CA(4) of the Act, not to revoke the cancellation.

4. On 30 November 2018, the appellant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. On 20 February 2019, the Tribunal affirmed the delegate’s decision. The appellant’s subsequent application for judicial review of the Tribunal’s decision was dismissed: XFCS v Minister for Home Affairs [2020] FCA 71. The basis of his application for judicial review was that the Tribunal had failed to consider submissions advanced on his behalf, which were contained in an email from the appellant’s lawyer to the Tribunal dated 6 February 2019 and which were accompanied by supporting country information (Emailed Submissions). The effect of the Emailed Submissions was that, if he were returned to Croatia:

   (a)irrespective of the appellant’s ability to be understood, his ability to comprehend Croatian, the language spoken by the majority of people in Croatia, was likely to be limited;

   (b)the appellant’s identity as an ethnic Serb, particularly a post-war returnee, would expose him to discrimination that would severely reduce his employment prospects and put him at risk of social and economic exclusion and “extreme poverty”; and

   (c)country information suggested that constitutional protections against discrimination on the basis of ethnicity were ineffective.

5. In the Notice of Appeal, the appellant relies on one ground:

   1.The Court below erred by failing to find that:

   a)the Tribunal ignored submissions advanced on behalf of the applicant in an email sent to the Tribunal by the applicant’s lawyer on 6 February 2019; and

   b)the Tribunal’s failure to consider that submission was material to the outcome of the applicant’s application for review of the decision of a delegate of the Minister not to revoke the mandatory cancellation of his permanent visa made under s 501(3A) of the of the Migration Act 1958 (Cth).

6. Before the primary judge an issue was raised as to whether the latter part of the Emailed Submissions (concerned with alleged discrimination and consequent difficulties in finding employment) had been considered by the Tribunal.  However, in oral submissions, counsel for the appellant made clear that the ground of appeal was confined to whether the Tribunal had considered the submission that his ability to comprehend Croatian was likely to be reduced by his lack of command of the Serbian language and his intellectual impairment.

7. For the reasons that follow, the appeal should be dismissed.

   Background

8. The appellant was born to Serbian parents in March 1989 in Croatia. Together with his family, he left Croatia in 1995 and lived in refugee camps in Kosovo and Serbia before the family was granted refugee visas in December 2002 and arrived in Australia in February 2003.

9. The appellant has an extensive criminal record which commenced in 2005 when he was still a minor. That record was set out at length by the Tribunal and was reproduced in the reasons for judgment of the primary judge (Reasons) at [20]. In summary, that record involved:

   ·False imprisonment, assault with a weapon, assault in company and unlawful assault – dealt with in the Children’s Court in August 2005;

   ·Several charges of theft, recklessly causing injury, failure to answer bail and intentionally causing injury – dealt with in the Children’s Court in September 2006;

   ·Further court appearances for sundry charges in 2006 and twice in 2008;

   ·Conviction for, amongst other charges, breach of an intervention order, false imprisonment, possession of a prohibited weapon without approval, intentionally causing injury and recklessly causing serious injury – sentenced in the County Court in June 2009 to an aggregate of 12 months imprisonment, 11 months to be served concurrently with another sentence and fined;

   ·Convicted, on the same day in June 2009, of aggravated burglary with an offensive weapon, aggravated burglary when a person was present and intentionally causing injury – sentenced in the County Court to a total of 30 months imprisonment;

   ·Convicted of driving whilst suspended (over the years he has been convicted of 13 charges of either driving whilst suspended or unlicensed driving) – sentenced in the Magistrates Court to terms of imprisonment in 2012 and 2013;

   ·In 2014, convicted after a jury trial of one charge of common assault and two charges of blackmail and convicted after guilty pleas of one count of theft, intentionally causing injury and blackmail – sentenced in the County Court by Judge Sexton to a total of 5 years and 10 months imprisonment with a minimum non-parole period of three years.

10. It appears that the appellant has been in custody and/or immigration detention since 2014.

    The submissions to the Tribunal

11. Before the Tribunal, the appellant was legally represented. Both parties agreed that the appellant did not pass the character test for the purposes of s 501(6) of the Act (Reasons at [39]).

12. The sole issue before the Tribunal was whether there was “another reason” to revoke the visa cancellation in accordance with s 501CA(4)(b)(ii) with reference to the primary and other considerations identified in “Direction No 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). Paragraph 14(1) of Direction 65 provides a non-exhaustive list of “other considerations” which must be taken into account by a decision-maker when relevant. These considerations include but are not limited to: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

13. On 22 January 2019, the appellant’s lawyer filed a detailed statement of facts, issues and contentions (ASFIC). Those submissions placed significant reliance upon a report by Mr Watson‑Munro, a consultant forensic psychologist, to support a submission that the appellant is in partial remission in relation to drug use which has led to improved cognition, judgment and decision‑making, that he has a plan in place for his release and his risk of re‑offending is significantly lower than when he was last sentenced in 2014.  It was also submitted that an assessment of the appellant's risk of re-offending should take account of the fact that his IQ falls within the intellectually disabled category and that it was arguable that in the absence of his use of crystal methylamphetamines, his lack of judgment and associated behaviour will be remedied.  The submission also dealt with the appellant's connections to his mother and to a partner in Australia.

14. As to the expectations of the Australian community and other considerations, reliance was placed upon what was described as the appellant’s “intellectual disability” and the impediment it would pose if he was removed from Australia.  In particular it was said that he would struggle to survive if returned to Croatia and he has limited capacity to effectively negotiate his environment.

15. On 30 January 2019, the Minister filed a statement in response.  It dealt with the appellant’s history of offending and his time in prison.  It submitted that he was a repeat offender, many of his offences were violent and that was reflected in the imposition of substantial terms of imprisonment.  As to the extent of any impediments if removed from Australia, the Minister submitted:

    However, the Tribunal should have regard to the fact that the applicant speaks Serbian - a language spoken in Croatia and understood by Croatians - and has employable skills as a painter.  There is therefore no reason to believe the applicant would face any language or employment barriers to return.

    The Minister submits that to the extent that this ‘other’ consideration weighs in favour of revocation, any such weight is insufficient to outweigh the seriousness of the applicant’s offending and the likelihood that he will commit further offences as discussed above.  The cumulative nature of the offending, which has become progressively more serious over the years, strongly points to the conclusion that the applicant presents an unacceptable risk to the Australian community.

    The Emailed Submissions

16. It was in the above context that the appellant’s lawyer sent the Emailed Submissions to the Tribunal on 6 February 2019 at 8.43pm. After listing the attached documents, the Emailed Submissions then said:

    I apologise for the late filing of the above evidence in reply to the Minister’s Statement of Facts, Issues and Contentions dated 30 January 2018.

    In order to assist the Tribunal, I draw attention to the relevant parts of the above material in the following brief submission.

    The applicant notes that the Serbian language is recognised as a separate minority language in Croatia (Attachment 6, page 1).  It has been identified as a ‘standardised variety of Serbo-Croatian’ with only 52,879 speakers in Croatia (Attachment 6, page 2).

    It appears that ‘[t]he opinion of the majority of Croatian linguists is that there has never been a Serbo-Croatian language, but two different standard languages that overlapped sometime in the course of history’ (Attachment 7, page 10).

    While the above view may be politically motivated and open to criticism, a number of propositions emerge:

    1)Serbian and Croatian may be mutually intelligible, but it is clear that a Serbian speaker can be readily distinguished and identified as such by a Croatian speaker;

    2)The Minister contends that the applicant speaks Serbian and can be understood by Croatian speakers, but does not address the applicant’s own ability to comprehend Croatian.  His ability to comprehend Croatian is likely to be reduced by his lack of command of the Serbian language and his intellectual impairment;

    3)Language and ethnic identity remain highly politicised issues in Croatia, and the applicant’s identity as an ethnic Serb is likely to seriously disadvantage him.

    (original emphasis)

17. The email went on to quote from the attached documents to support the view that “there is ongoing discrimination against ethnic Serbs in Croatia” and contended that the appellant would have difficulties finding employment as a result.

18. Plainly, in addressing those two topics, the Emailed Submissions were a response to the submission for the Minister that the appellant speaks Serbian, a language that would be understood in Croatia and that he had skills as a painter that would make him employable.

19. After the submissions were filed and the Emailed Submissions were provided, the Tribunal heard the application on 11 and 12 February 2019, and provided its reasons on 20 February 2019 (AAT Reasons).  There was no transcript of the oral submissions to the Tribunal before the primary judge and there was no attempt to lead evidence of those submissions on appeal.

20. The substance of the Emailed Submissions was not advanced by the appellant in his statement of facts, issues and contentions that was filed with the Tribunal. As was observed by the primary judge, at [38], what was said in the Emailed Submissions was the extent of the submissions advanced on those topics.

    Whether the Emailed Submissions were considered by the Tribunal

21. There was no dispute as to the legal principles to be applied.  As a matter of procedural fairness, a material submission advanced to the Tribunal could not be ignored.  Further, there had to be an active intellectual engagement with the substance of the reasons advanced as to why the power to revoke the cancellation of the visa should be exercised by the Tribunal (standing in the shoes of the delegate of the Minister who had made the decision under review):  see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37]; and Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 at [34]‑[36].

22. The epithet “active intellectual engagement” must be understood in its proper context of describing the nature and quality of consideration that will meet the statutory requirement for a lawful decision in the particular case rather than involving an evaluation by the Court on judicial review of the merit of the decision, the latter being a matter only for the administrative decision‑maker:  Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29]-[30]. In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [47]‑[48] (Griffiths, White and Bromwich JJ), the Full Court noted that the question whether the decision‑maker engaged in an active intellectual process requires the Court to conduct an evaluative judgment taking into account all the relevant facts and circumstances of each case. Further, such a finding will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof.

23. Of importance in the present case is the need to maintain a frame of reference that is informed by the whole of the submissions that were advanced by the appellant to the Tribunal and the context in which the particular issue alleged to have been ignored was actually presented.  The question whether a particular matter was advanced as being material and whether it was ignored must be evaluated in that context.  It is not appropriate to focus in retrospect upon a particular matter that is raised to new significance by later submission in the context of alleged jurisdictional error.

24. In this case the matter that was said to have been ignored was, in effect, the content of a single sentence making a claim that was not made in the ASFIC and, as to its relevance to the appellant, was not supported by reference to any factual material.  It was raised by way of informal communication briefly stated in the Emailed Submissions.  To the extent that it was linked to matters in the ASFIC, it rested upon the earlier claim developed in the ASFIC to the effect that the appellant suffered from an intellectual disability.  Finally, before the primary judge it was raised without evidence as to the manner in which the case for the appellant was presented at the oral hearing and the significance that it assumed at that hearing.

25. The primary judge dealt with the claim with considerable care.  His Honour concluded that he was not persuaded that the Tribunal failed, as a matter of substance, to have regard to the representations put on the appellant’s behalf in the Emailed Submissions and thereby failed to exercise jurisdiction in the sense discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] and [32] per Gummow and Callinan JJ, at [88] per Kirby J, and at [95] per Hayne J, and in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365 per Griffiths J at [81] (Reasons at [63]).

26. The primary judge articulated three reasons for the conclusion that the Tribunal had considered the Emailed Submissions. The first concerned the context in which the Emailed Submissions were made. In the statement of facts, issues and contentions filed by each of the parties, the extent of the impediments to removal formed a minor aspect of the submissions; they addressed in large part the two primary considerations in Direction 65 that were relevant, being the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community (Reasons at [64]). It can be inferred from the AAT Reasons, and the form of the Emailed Submissions, that the focus of the Tribunal’s deliberations was on the two primary considerations.

27. Secondly, the Emailed Submissions were short and relatively undeveloped (Reasons at [65]). The first two paragraphs of the Emailed Submissions were concerned with the appellant’s language proficiency:

    1)Serbian and Croatian may be mutually intelligible, but it is clear that a Serbian speaker can be readily distinguished and identified as such by a Croatian speaker.

    2)The Minister contends that the applicant speaks Serbian and can be understood by Croatian speakers, but does not address the applicant’s own ability to comprehend Croatian. His ability to comprehend Croatian is likely to be reduced by his lack of command of the Serbian language and his intellectual impairment.

1. They did not contest the Minister’s submission that the appellant speaks Serbian, which is a language spoken in Croatia and understood by Croatians, but asserted that his ability to comprehend Croatian is likely to be reduced by his lack of command of the Serbian language and his intellectual impairment.

2. Notwithstanding that no express reference was made to these paragraphs, the Tribunal made the following findings in relation to whether the appellant suffered from an intellectual disability (as submitted in the ASFIC) (AAT Reasons at [88]):

   Mr Watson-Munro’s evidence was that on a day-to-day level with an IQ of 72, the Applicant is on the “cusp of intellectual disability” or placed in the “borderline range”.  He sought to contend that, making allowance for an actuarial analysis and statistical adjustment, the Applicant could be in the intellectually disabled range.  Mr Watson‑Munro largely agreed with the conclusions of Mr Ball that the variation between the Applicant’s verbal and non-verbal IQ (described in Mr Ball’s report as “Performance IQ”) was probably related to his limited education and the fact that English is not his first language.

3. Then, later, after considering other reports (AAT Reasons at [96]-[97]):

   The Tribunal should observe that the Applicant was in the witness box for some time and did not exhibit any hallmarks of an intellectual disability.  He was able to answer the questions that were put to him comparatively easily.  He demonstrated powers of comprehension, thinking and expression that enabled him to give his evidence in a logical and proper way.  He seemed perfectly capable of interacting with others on a day-to-day basis and also acutely alive to protecting his own interests.

   Overall, it is very difficult for the Tribunal to reach an opinion on the limited evidence available before it concerning this matter.  The material does enable a conclusion that the Applicant has a comparatively low IQ and therefore the Tribunal accepts that the Applicant suffers some level of intellectual impairment.  However, in making this finding, the Tribunal notes the evidence of Mr Watson-Munro that the Applicant may well be in the borderline range or on the cusp of such a disability.

4. Ultimately, the Tribunal found, after referring to the “matters identified in the expert reports of the clinical psychologists and the psychiatrist”, which reports identified the appellant’s low IQ and borderline intellectual disability, that the appellant speaks a language that is understandable in both Croatia and Serbia (AAT Reasons at [171]). That finding, which was consistent with the first paragraph of the Emailed Submissions, was not challenged before the primary judge. As the primary judge observed, there was no evidence to support the assertion in the second paragraph (Reasons [65]).

5. Thirdly, the primary judge was not prepared to infer that the Tribunal overlooked the Emailed Submissions and failed to have regard to the email. That was appropriate. The Tribunal had stated expressly that it took into account the articles attached to the Emailed Submissions (AAT Reasons [17(e)]) and said that it had read the articles (AAT Reasons at [138]).

6. The Tribunal observed that the relevant aspects of the articles were the references to harassment and discrimination of the small Serbian community remaining in Croatia. This correlates directly with paragraph (3) of the Emailed Submissions which read:

   3)Language and ethnic identity remain highly politicised issues in Croatia, and the applicant’s identity as an ethnic Serb is likely to seriously disadvantage him.

   With regard to the last point, numerous sources support the view that there is ongoing discrimination against ethnic Serbs in Croatia.

7. The Tribunal found that it is possible that the applicant could face some level of harassment or discrimination by reason of his Serbian ethnicity were he to return to Croatia (AAT Reasons at [177]).

8. The appellant’s complaint in this Court is that the primary judge should have found that the Tribunal ignored the Emailed Submissions. In our view, for the reasons that follow (and those set out above), the primary judge was correct to conclude that the Tribunal considered the Emailed Submissions.

9. The approach to be followed by a court when reviewing the reasons of an administrative decision-maker was reiterated by the Full Court in Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200 at [37]:

   In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:

   (1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.

   (2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:

   (a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang) at 272;

   (b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal.  The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and

   (c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].

10. The primary judge was correct to hold that the observations and findings of the Tribunal at [138] and [177] of the AAT Reasons support the conclusion that the Tribunal had regard to the Emailed Submissions, even though they were not expressly referred to (Reasons at [66]). 

11. This conclusion was not undermined by the observation (AAT Reasons at [138]) that the Tribunal was not referred to any specific sections of the articles (even though the Emailed Submissions did refer to specific sections of the attached articles). Contrary to the submissions of the appellant, this does not indicate that the Tribunal overlooked the specific references set out in the email. As found by the primary judge, read in context, that observation is properly read as intending to convey that the Tribunal was not referred to specific sections of the articles in relation to the issue of international non-refoulement obligations, which was the particular issue which was being considered by the Tribunal at [138].

12. Nor does the observation that, “There is surprisingly little material before the Tribunal that addresses these questions” (AAT Reasons at [170]), being the extent of the impediments if returned, support a conclusion that the Tribunal overlooked the Emailed Submissions. The primary judge was correct to conclude (Reasons at [67]) that the statement was a reference to the totality of the appellant’s submissions on the topic of the extent of impediments if returned, which was the subject matter of the immediately preceding paragraph.

13. No error is shown in the primary judge’s conclusion that the Tribunal ignored the Emailed Submissions.

    The materiality of the matters contained in the Emailed Submissions

14. The primary judge also held that, even if the Tribunal had overlooked the Emailed Submissions, any such error was not material, in that it could not have affected the outcome of the decision having regard to the totality of the Tribunal’s reasons (Reasons [69]-[70]).

15. The primary judge held that, to the extent that the Tribunal failed to address the matters raised on behalf of the appellant in the Emailed Submissions, there was no realistic prospect that the Tribunal’s decision could have been different if it had taken those matters into account (Reasons at [70]).

16. The appellant challenges the primary judge’s conclusion as to materiality.

17. The relevant principles relating to materiality were considered recently by the Full Court in the context of a failure to consider a matter in the context of a decision not to exercise the power conferred by s 501CA(4). In PQSM v Minister for Home Affairs [2020] FCAFC 125 (PQSM), Banks‑Smith and Jackson JJ (Mortimer J dissenting) considered the recent High Court decisions Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421. Their Honours summarised the principle to be applied in the following terms at [139]:

    It is sometimes said that the reasons of the majority in SZMTA represent no departure from Hossain.  To the extent that this means that Hossain and SZMTA are consistent with each other, that is correct.  But in SZMTA it was necessary to say where the threshold for materiality lay, and there is no warrant in our view to disregard the repeated statements by the majority to the effect that an error will be material, and so jurisdictional, only if there could ‘realistically’ have been a different decision if the error had not been made.  It is open to debate whether that is, in truth, a departure from the standard of materiality applied in Hossain, or even a departure from Peko-Wallsend or other previous High Court decisions that apply the concept of materiality or an analogue of that concept.  But in our respectful view the debate is an arid one:  the majority in SZMTA has expressed the threshold in clear terms.

18. The primary considerations in Direction 65 of the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community dominated the reasoning of the Tribunal. In the present case, the primary judge determined that the Tribunal’s findings to the effect that (a) the appellant’s extensive and serious criminal conduct meant that the protection of the Australian community and community expectations weighed heavily against revocation of his visa cancellation; and (b) the issue of the extent of impediments if the appellant was returned weighed in favour of cancellation of the visa, together meant that there was no realistic prospect that the Tribunal’s decision could have been different if the Tribunal had taken into account what was submitted in the Emailed Submissions. Further, in expressing those views, his Honour was dealing with an argument that there had also been other aspects of the Emailed Submissions concerned with alleged discrimination that had been ignored by the Tribunal (an argument not pressed on appeal).

19. Where materiality is in issue, it is a question of fact whether there could realistically have been a different decision.  “[I]t is a question the court must resolve on the basis of the evidence and inferences available, including the reasons of the Tribunal or other decision-maker under review”:  PQSM at [151]. It follows that, on appeal, an appellant who challenges a finding that a matter that would otherwise be jurisdictional in character was not material must identify factual error by the primary judge. The appellant did not seek to identify error in the primary judge’s factual findings beyond alleging that the matter could realistically have led to a different outcome.

20. The claim was put on the basis that there was procedural unfairness in not considering the relevant submission in the Emailed Submissions as well as on the basis that there was a failure to undertake the statutory task by ignoring the subject matter of the decision in making the decision. If the Tribunal did disregard the submission, one possibility is that the submission in the Emailed Submissions was not specifically adverted to but the reasoning indicates a particular view on the part of the Tribunal as to the relative insignificance in the weighing process of the precise extent of certain types of impediments if the appellant was to be returned. Precisely how the issue of materiality should be approached in such instances may have its complexities.

21. In light of the conclusion we have reached above that no error is shown in the primary judge’s conclusion that the Tribunal did consider the Emailed Submissions, it is not necessary to reach a final view on the issue of materiality. However, we make the following additional observations.

22. It is pertinent to record the Tribunal’s findings with respect to the most recent offending:

    72. There are some other comments made by Judge Sexton in her reasons that should be noted. Firstly, she stated that the Applicant, for a young man, has a very bad criminal record. She also considered the question of whether the Applicant was intellectually impaired. She considered that if he was intellectually impaired, she was not persuaded that it reduced the moral culpability of his offending conduct.

    73. The importance of general deterrence in cases of blackmail were emphasised by the judge. She emphasised the need for protection of the community, which gave rise to the need for specific deterrence.

    74. On the question of the likelihood of the Applicant reoffending, the Judge concluded there was “a high risk” of that occurring, but it would be lessened if he remained free of drugs and received treatment for drug addiction and personality disorders.

    75. In the context of the relevant paragraphs of the Direction, with respect to the matters for which the Applicant was sentenced in 2014, several things are applicable. In each instance of offending recounted there was not only violence but a pattern of threats, and in the case of the first indictment, threats over some days that culminated in the events that took place in the garage. The thoroughly unacceptable behaviour of transferring the debt to a third party in the threatening manner that it was warrants attention. Also, there was the production of a weapon, whatever it may have been. Of further note was the intimidating, or as the Judge described it the “menacing” behaviour that the Applicant engaged in.

    76. The resort to the baseball bat in the circumstances was exceptionally violent. Another feature of the Applicant’s offending surrounding the incident with the baseball bat is that there was the element of him assisting two friends (or associates) in the way that he did. He should not have been involved. Yet he readily intervened. It does not reflect well upon him.

    77. The Tribunal observes that the frequency of the Applicant’s offending, which is a relevant consideration by reason of paragraph 13.1.1(d) of the Direction, is of concern. There has been a trend of increasing seriousness which is apparent from the account of the Applicant’s offending over the years which has been given in these reasons. One might have thought, after his 2009 appearance in the County Court and subsequent imprisonment, that he might have learned his lesson. Unfortunately, he did not. The victim of the incident with the baseball bat suffered terrible injuries as the result of an act of wanton violence and a blatant attempt to stand over an individual to extract a financial gain. It was mindless thuggery and is completely unacceptable.

    78. The Respondent, in support of its contentions concerning the nature and seriousness of the Applicant’s conduct and offending, has also relied upon the Applicant’s conduct in prison and immigration detention. The Respondent contends that the conduct of the Applicant in prison and immigration detention is such that it shows a tendency to disregard the law and is further evidence that the Applicant represents too great a risk of harm to justify his visa being reinstated.

    79. To the Applicant’s credit, he did admit most of the matters that were alleged and referred to in the prison records that were in evidence before the Tribunal.

    80. The Applicant admitted to returning at least two positive urine samples whilst in prison. Those positive samples were for drugs. He readily conceded that he had been taking drugs when he was in prison. He admitted that for returning positive urine samples for drugs that he was convicted at a Governor’s hearing in the prison.

    81. He also agreed that in August 2015 he had punched a prisoner in the face, knocking him to the ground and causing him some injury. Apparently, this incident was as a result of a long-standing feud or disagreement between that prisoner and the Applicant. He stated that he immediately admitted to prison authorities what he did to the other prisoner and said it was a mistake.

    82. Another matter that arose from his time in prison occurred in July 2017 when he informed a prison officer who he did not like because she said she could have him transferred to another prison, that he had been a “patched” member of a motorcycle club but no longer was. He further stated to the prison officer that he still associated with people who were patched members of a motorcycle club. He declined to identify the motorcycle club that he was allegedly a member of. In the witness box he stated that this statement to the prison officer was false. When asked why he made the statement, he said he wanted to get back at her and he described her as a “smartarse”. This deliberate attempt to mislead and deceive the prison officer did not reflect well on the Applicant. This incident is another example of the way he tends to treat obedience to the law and react to authority. His credibility certainly is affected by this fact.

23. It is also apparent that the Tribunal gave consideration to a range of “other considerations” as identified in Direction 65 including the extent of impediments if returned. Specifically, as already observed, the Tribunal considered the appellant’s intellectual capacity and the relevance of that to his language proficiency. The Tribunal acknowledged the significant challenges that would be faced by the appellant in re-establishing himself after such a long absence, whether in Croatia or Serbia (AAT Reasons at [173]) and was mindful of the difficulty the appellant would face in familiarising himself with the available social, medical and/or economic supports that could assist him (AAT Reasons at [174]). The Tribunal also referred specifically to the possibility that the appellant could face some level of harassment or discrimination by reason of his Serbian ethnicity were he to return to Croatia and observed that this consideration weighed in favour of revocation of the mandatory cancellation (AAT Reasons at [177]-[178]). Nevertheless, the Tribunal concluded that the “other considerations”, including the extent of impediments if returned, did not outweigh the weight to be accorded to the gravity of the appellant’s criminal history, the risk to the Australian community should the applicant reoffend and the expectations of the Australian community (AAT Reasons at [186]).

    Disposition

24. The appeal should be dismissed with costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Moshinsky, SC Derrington and Colvin.

Associate:

Dated:       17 August 2020